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A06059 Summary:

BILL NOA06059A
 
SAME ASSAME AS S03646-A
 
SPONSORJaffee
 
COSPNSR
 
MLTSPNSR
 
Amd 60.35, 120.05, 135.30, 135.45 & 140.10, add Art 261 261.00 - 261.40, Pen L
 
Establishes criminal offenses committed against the elderly or disabled persons.
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A06059 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         6059--A
 
                               2015-2016 Regular Sessions
 
                   IN ASSEMBLY
 
                                     March 11, 2015
                                       ___________
 
        Introduced by M. of A. JAFFEE -- read once and referred to the Committee
          on  Codes  -- recommitted to the Committee on Codes in accordance with
          Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered
          reprinted as amended and recommitted to said committee
 
        AN ACT to amend the penal law, establishing a mandatory senior anti-vio-
          lence services fee imposed upon conviction of a criminal  offense  and
          offenses against the elderly and disabled
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1.  The section heading and subdivision 1 of section 60.35  of
     2  the  penal  law,  as amended by section 1 of part E of chapter 56 of the
     3  laws of 2004, subparagraphs (i), (ii) and  (iii)  of  paragraph  (a)  of
     4  subdivision  1  as  amended by section 1 of part DD of chapter 56 of the
     5  laws of 2008 and paragraph (b) of subdivision 1 as  amended  by  chapter
     6  320 of the laws of 2006, are amended to read as follows:
     7    Mandatory  surcharge, sex offender registration fee, DNA databank fee,
     8  supplemental sex offender victim fee [and], crime victim assistance  and
     9  a senior anti-violence services fee required in certain cases.
    10    1.  (a)  Except  as  provided  in section eighteen hundred nine of the
    11  vehicle and traffic law and section 27.12 of the parks,  recreation  and
    12  historic  preservation  law,  whenever  proceedings in an administrative
    13  tribunal or a court of this state result in a conviction for a felony, a
    14  misdemeanor, or a violation, as these terms are defined in section 10.00
    15  of this chapter,  there  shall  be  levied  at  sentencing  a  mandatory
    16  surcharge,  sex  offender  registration  fee,  DNA databank fee [and], a
    17  crime victim assistance fee and a senior anti-violence services  fee  in
    18  addition  to  any  sentence  required or permitted by law, in accordance
    19  with the following schedule:
    20    (i) a person convicted of a felony shall pay a mandatory surcharge  of
    21  three  hundred  dollars  [and], a crime victim assistance fee of twenty-
    22  five dollars, and a senior anti-violence services fee of fifty dollars;
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD06468-03-6

        A. 6059--A                          2
 
     1    (ii) a person  convicted  of  a  misdemeanor  shall  pay  a  mandatory
     2  surcharge  of  one  hundred  seventy-five  dollars [and], a crime victim
     3  assistance fee  of  twenty-five  dollars,  and  a  senior  anti-violence
     4  services fee of fifty dollars;
     5    (iii)  a  person  convicted  of  a  violation  shall  pay  a mandatory
     6  surcharge of ninety-five dollars [and], a crime victim assistance fee of
     7  twenty-five dollars, and a senior anti-violence services  fee  of  fifty
     8  dollars;
     9    (iv) a person convicted of a sex offense as defined by subdivision two
    10  of section one hundred sixty-eight-a of the correction law or a sexually
    11  violent  offense  as defined by subdivision three of section one hundred
    12  sixty-eight-a of the correction law shall, in addition  to  a  mandatory
    13  surcharge  and crime victim assistance fee, pay a sex offender registra-
    14  tion fee of fifty dollars[.], and a senior anti-violence services fee of
    15  fifty dollars;
    16    (v) a person convicted of a designated offense as defined by  subdivi-
    17  sion  seven  of  section  nine  hundred ninety-five of the executive law
    18  shall, in addition to a mandatory surcharge and crime victim  assistance
    19  fee, pay a DNA databank fee of fifty dollars, and a senior anti-violence
    20  services fee of fifty dollars.
    21    (b)  When  the  felony  or  misdemeanor  conviction in [subparagraphs]
    22  subparagraph (i), (ii) or (iv) of  paragraph  (a)  of  this  subdivision
    23  results  from an offense contained in article one hundred thirty of this
    24  chapter, incest in the third, second  or  first  degree  as  defined  in
    25  sections  255.25,  255.26  and  255.27  of  this  chapter  or an offense
    26  contained in article two hundred sixty-three of this chapter, the person
    27  convicted shall pay a supplemental sex offender victim fee of one  thou-
    28  sand  dollars,  and  a senior anti-violence services fee of five hundred
    29  dollars, in addition to the mandatory surcharge and any other fee.
    30    § 2. The penal law is amended by adding a new article 261 to  read  as
    31  follows:
 
    32                                 ARTICLE 261
    33                  OFFENSES AGAINST THE ELDERLY AND DISABLED
    34  Section 261.00 Elderly,  vulnerable  elderly and disabled persons; defi-
    35                   nitions.
    36          261.05 Crimes against the elderly and disabled; presumption.
    37          261.10 Abandonment of an elderly or disabled person.
    38          261.15 Abandonment of an elderly or disabled person; defense.
    39          261.20 Endangering the welfare of an elderly or disabled person.
    40          261.25 Endangering the welfare of an elderly or disabled person;
    41                   corroboration.
    42          261.30 Endangering the welfare of an elderly or disabled person;
    43                   defense.
    44          261.35 Endangering the welfare of a vulnerable elderly person or
    45                   a disabled person in the second degree.
    46          261.40 Endangering the welfare of a vulnerable elderly person or
    47                   a disabled person in the first degree.
 
    48  § 261.00 Elderly, vulnerable elderly and disabled persons; definitions.
    49    For the purpose of  this  article,  the  following  definitions  shall
    50  apply:
    51    1.  "Caregiver"  means a person who (a) assumes responsibility for the
    52  care of a vulnerable elderly person pursuant to a court  order;  or  (b)
    53  receives monetary or other valuable consideration for providing care for
    54  a vulnerable elderly person.

        A. 6059--A                          3
 
     1    2. "Sexual contact" means any touching of the sexual or other intimate
     2  parts of a person not married to the actor for the purpose of gratifying
     3  sexual desire of either party.  It includes the touching of the actor by
     4  the  victim, as well as the touching of the victim by the actor, whether
     5  directly or through clothing.
     6    3.  "Vulnerable  elderly  person" means a person sixty years of age or
     7  older who is suffering from  a  disease  or  infirmity  associated  with
     8  advanced   age  and  manifested  by  demonstrable  physical,  mental  or
     9  emotional dysfunction to the extent that  the  person  is  incapable  of
    10  adequately providing for his or her own health or personal care.
    11    4. "Elderly person" means a person sixty years of age or older.
    12    5.  "Disabled  person"  means  a  person  who has a physical or mental
    13  impairment that substantially limits a major life activity.
    14  § 261.05 Crimes against the elderly and disabled; presumption.
    15    In any case in which it shall be  shown  that  a  person  intended  to
    16  commit  a  specified offense pursuant to section 485.05 of this chapter,
    17  it shall be a rebuttal presumption that the person selected  the  victim
    18  or  committed  or  intended  to  commit the act or acts constituting the
    19  offense in whole or in substantial part because of a  belief  that  such
    20  victim is elderly or disabled.
    21  § 261.10 Abandonment of an elderly or disabled person.
    22    A  person  is  guilty  of abandonment of an elderly or disabled person
    23  when, being a person legally charged with the  care  or  custody  of  an
    24  elderly  or  disabled person, he or she deserts such person in any place
    25  with intent to wholly abandon him or her.
    26    Abandonment of an elderly or disabled person is a class E felony.
    27  § 261.15 Abandonment of an elderly or disabled person; defense.
    28    In any prosecution for abandonment of an elderly or  disabled  person,
    29  pursuant  to  section  261.10  of  this  article,  based upon an alleged
    30  desertion of an elderly or disabled person  with  an  intent  to  wholly
    31  abandon such an elderly or disabled person, it is an affirmative defense
    32  that,  with  the intent that the elderly or disabled person be safe from
    33  physical injury and cared for in an appropriate  manner,  the  defendant
    34  left  the  elderly or disabled person with an appropriate person or in a
    35  suitable location and promptly notified an  appropriate  person  of  the
    36  elderly or disabled person's location.
    37  § 261.20 Endangering the welfare of an elderly or disabled person.
    38    A  person  is guilty of endangering the welfare of an elderly or disa-
    39  bled person when being a person legally charged with the care or custody
    40  of an elderly or disabled person:
    41    1. He or she knowingly acts in a manner likely to be injurious to  the
    42  physical,  mental  or moral welfare of an elderly or disabled person, or
    43  directs or authorizes such an elderly or disabled person, to  engage  in
    44  an  occupation involving a substantial risk of danger to his or her life
    45  or health; or
    46    2. He or she fails or refuses to exercise reasonable diligence in  the
    47  control  of  such  elderly or disabled person to prevent him or her from
    48  physical, mental or moral injury, or from engaging in acts  involving  a
    49  substantial risk of danger to his or her life or health.
    50    Endangering  the welfare of an elderly or disabled person is a class A
    51  misdemeanor.
    52  § 261.25 Endangering the welfare  of  an  elderly  or  disabled  person;
    53             corroboration.
    54    A  person  shall  not  be  convicted  of endangering the welfare of an
    55  elderly or disabled person, or of an attempt to commit  the  same,  upon
    56  the  testimony of a victim who is incapable of consent because of mental

        A. 6059--A                          4
 
     1  defect or mental incapacity as to conduct that constitutes an offense or
     2  an attempt to commit an offense referred to in section  130.16  of  this
     3  chapter,  without  additional  evidence  sufficient  pursuant to section
     4  130.16 of this chapter to sustain a conviction of an offense referred to
     5  in section 130.16 of this chapter, or of an attempt to commit the same.
     6  §  261.30 Endangering  the  welfare  of  an  elderly or disabled person;
     7             defense.
     8    In any prosecution for endangering the welfare of an elderly or  disa-
     9  bled person, pursuant to section 261.20 of this article:
    10    1.  based upon an alleged failure or refusal to provide proper medical
    11  care or treatment to an elderly or disabled person, who is ill, it is an
    12  affirmative defense that the elderly or disabled person is a  member  or
    13  adherent  of  an organized church or religious group the tenets of which
    14  prescribe prayer as the principal treatment for illness,  and  that  the
    15  elderly  or  disabled person was treated in accordance with such tenets;
    16  or
    17    2. based upon an alleged desertion of an elderly or  disabled  person,
    18  it  is  an  affirmative defense that, with the intent that the person be
    19  safe from physical injury and cared for in an  appropriate  manner,  the
    20  defendant  left  the  person with an appropriate person or in a suitable
    21  location and promptly notified an appropriate  person  of  the  person's
    22  location.
    23  §  261.35 Endangering  the  welfare  of a vulnerable elderly person or a
    24             disabled person in the second degree.
    25    A person is guilty of endangering the welfare of a vulnerable  elderly
    26  person or a disabled person in the second degree when, being a caregiver
    27  for a vulnerable elderly person or a disabled person:
    28    1.  With  intent  to  cause  physical injury to such person, he or she
    29  causes such injury to such person; or
    30    2. He or she recklessly causes physical injury to such person; or
    31    3. With criminal negligence, he or she causes physical injury to  such
    32  person by means of a deadly weapon or a dangerous instrument; or
    33    4.  He  or  she  subjects  such  person  to sexual contact without the
    34  latter's consent. Lack of consent under this  subdivision  results  from
    35  forcible compulsion or incapacity to consent, as those terms are defined
    36  in  article  one  hundred  thirty  of this chapter, or any other circum-
    37  stances in which the vulnerable elderly person or disabled  person  does
    38  not expressly or impliedly acquiesce in the caregiver's conduct.
    39    In  any  prosecution  under  this  subdivision  in  which the victim's
    40  alleged lack of  consent  results  solely  from  incapacity  to  consent
    41  because  of  the  victim's  mental  disability or mental incapacity, the
    42  provisions of section 130.16 of this chapter shall apply.  In  addition,
    43  in  any prosecution under this subdivision in which the victim's lack of
    44  consent is based solely upon his or her incapacity to consent because he
    45  or she was mentally disabled, mentally incapacitated or physically help-
    46  less, it is an affirmative defense that the defendant, at the time he or
    47  she engaged in the conduct constituting the offense, did not know of the
    48  facts or conditions responsible for such incapacity to consent.
    49    Endangering the welfare of a vulnerable elderly person or  a  disabled
    50  person in the second degree is a class E felony.
    51  §  261.40  Endangering  the  welfare of a vulnerable elderly person or a
    52             disabled person in the first degree.
    53    A person is guilty of endangering the welfare of a vulnerable  elderly
    54  person  or a disabled person in the first degree when, being a caregiver
    55  for a vulnerable elderly person or disabled person:

        A. 6059--A                          5
 
     1    1. With intent to cause physical injury to  such  person,  he  or  she
     2  causes serious physical injury to such person; or
     3    2. He or she recklessly causes serious physical injury to such person.
     4    Endangering  the  welfare of a vulnerable elderly person or a disabled
     5  person in the first degree is a class D felony.
     6    § 3. Section 120.05 of the penal law is amended by adding a new subdi-
     7  vision 14 to read as follows:
     8    14. Being eighteen years old or more and with intent to cause physical
     9  injury to a person sixty years old or older, or to a person  who  has  a
    10  physical  or  mental  impairment  that substantially limits a major life
    11  activity, the defendant causes such injury to such person.
    12    § 4. Section 135.30 of the penal law is amended to read as follows:
    13  § 135.30 Kidnapping; defense.
    14    In any prosecution for kidnapping, it is an affirmative  defense  that
    15  (a)  the defendant was a relative of the person abducted, and (b) his or
    16  her sole purpose was to assume control of such person.
    17    This section shall not apply in  the  case  when  the  person  who  is
    18  abducted  is sixty years old or older, or to a person who has a physical
    19  or mental impairment that substantially limits a  major  life  activity,
    20  and the kidnapping was done with the intention of compelling such person
    21  to transfer an asset to the defendant or to a third party.
    22    § 5. Section 135.45 of the penal law is amended to read as follows:
    23  § 135.45 Custodial interference in the second degree.
    24    A  person  is  guilty  of  custodial interference in the second degree
    25  when:
    26    1. Being a relative of a child less than sixteen years old,  intending
    27  to  hold  such child permanently or for a protracted period, and knowing
    28  that he has no legal right to do so, he takes or entices such child from
    29  his lawful custodian; or
    30    2. Knowing that he has no legal right to do so, he  takes  or  entices
    31  from  lawful custody any incompetent person or other person entrusted by
    32  authority of law to the custody of another person or institution; or
    33    3. Knowing that he or she has no legal right to do so, he or she takes
    34  or entices any person sixty years of age or older, or a person who has a
    35  physical or mental impairment that substantially  limits  a  major  life
    36  activity, from the custody of another person or institution.
    37    Custodial interference in the second degree is a class A misdemeanor.
    38    § 6. Subdivision (g) of section 140.10 of the penal law, as amended by
    39  chapter 176 of the laws of 2011, is amended and a new subdivision (h) is
    40  added to read as follows:
    41    (g)  where  the property consists of a right-of-way or yard of a rail-
    42  road or rapid transit railroad which has been designated  and  conspicu-
    43  ously posted as a no-trespass railroad zone[.]; or
    44    (h)  which  is  a  dwelling occupied by a person sixty years of age or
    45  older, or a person who has a physical or mental impairment that substan-
    46  tially limits a major life activity.
    47    § 7. Severability. If any provision of this  act  or  the  application
    48  thereof  to  any  person  or  circumstances  is  held to be invalid, the
    49  remainder of the act and the application  of  such  provision  to  other
    50  persons or circumstances shall not be affected thereby.
    51    § 8. This act shall take effect immediately.
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